Federal OSM is showing a double standard

In Tennessee, federal mining regulators won't issue a strip-mine permit if the U.S. Environmental Protection Agency objects to the mine's water pollution permit.

In West Virginia, the U.S. Office of Surface Mining has allowed the state Division of Environmental Protection to issue the state's largest mountaintop-removal mine permit - even though the EPA has objected to the mine's water permit.

The OSM runs the state Surface Mining Control and Reclamation Act regulatory program in Tennessee.

Beverly Brock, supervisor of the technical section of OSM's Knoxville, Tenn., office, said her staff would not approve a strip-mine permit if the EPA objected to the related water pollution permit.

"We would not, because they would not be able to meet the requirements of the Clean Water Act," Brock said Friday. "We would suspend the processing of that permit."

Under federal law, strip mines must receive two permits: a mining permit issued under the surface mining law, and a National Pollution Discharge Elimination System permit issued under the federal Clean Water Act.

Generally, states issue both permits themselves. The OSM is supposed to make sure mining permits are properly issued by states; the EPA is supposed to make sure NPDES permits are properly issued by states.

McCabe says he will not allow the permit to be issued until he is sure that it will comply with the Clean Water Act. McCabe says the company and the DEP haven't provided enough information to convince him and his staff.

Miano said he issued the permit because Arch Coal promised to lay off up to 400 workers, starting on Dec. 31, if he did not. Miano said the EPA has taken too long to review the permit. He called the delays "criminal," and said his office believes the permit meets the legal requirements.

Today, Chief U.S. District Judge Charles Haden II will hear arguments on whether he should rescind the permit Miano issued.

The West Virginia Highlands Conservancy plans to argue that Miano illegally issued the permit. Among other things, the group contends that the DEP can't issue the mining permit unless Arch Coal has first received an NPDES permit. The Highlands Conservancy also contends that the Arch Coal permit has a variety of other problems, including inadequate water-quality studies and the lack of an approximate original contour reclamation variance.

Under the federal surface mining law, all surface-mine permits must comply with the Clean Water Act. The Highlands Conservancy contends that the DEP can't know Arch Coal's proposed mine will comply unless the company has received an NPDES permit.

Last week, the OSM field office in Charleston reviewed Miano's action and said he did nothing wrong.

Tom Morgan, a spokesman for the office, said that OSM thinks it is fine for Arch Coal to receive the mining permit before the NPDES permit is approved.

The OSM actually has no written policy on the issue.

In January 1995, environmental groups filed a formal notice of intent to sue the OSM and the DEP alleging that mining permits could not be issued without NPDES permits.

No lawsuit was ever filed. In response to the notice of intent to sue, OSM drew up a draft policy. The policy would have allowed mining permits to be issued without NPDES permits being approved first. The policy was never approved or subjected to public scrutiny.

But in Tennessee, where the OSM - not the state - oversees mine permitting, Arch Coal would not have been able to receive its mining permit yet.

Brock said her office would not issue a mining permit if the EPA had an unresolved objection to the associated NPDES permit.

"If there's any problem with that NPDES permit, then we will not issue a surface-mining permit," Brock said. "We would stop that process."